Human Rights Act Intervention Guidelines
The Human Rights Act 2019 is a Queensland law that protects and promotes 23 human rights.
The Human Rights Act requires public entities, such as departments of the Queensland Government, and certain people delivering services on behalf of Government, to act compatibly with those human rights.
The Attorney-General’s intervention function under the Human Rights Act
Under section 50 of the Human Rights Act, the Attorney-General may intervene in any court or tribunal proceeding in which a question of law arises that relates to the application of the Human Rights Act or a question arises in relation to the interpretation of a statutory provision in accordance with the Human Rights Act.
Under section 51 of the Human Rights Act, the Queensland Human Rights Commission may also intervene.
When the Attorney-General intervenes in a proceeding, the Attorney-General becomes a party to that proceeding. The Attorney-General’s role is to assist the court or tribunal, and to put forward submissions about how the Human Rights Act should be interpreted and applied.
How are Human Rights Act notifications processed?
While the Attorney-General may intervene in any proceeding, section 52 of the Human Rights Act requires a party to a proceeding in the District Court, Supreme Court or Court of Appeal to give notice in the prescribed form to the Attorney-General and the Queensland Human Rights Commission if the proceeding raises an issue under the Human Rights Act.
Crown Law is to be served with a copy of this notice. The parties may also notify Crown Law that the proceeding raises an issue under the Human Rights Act, even though the proceeding is not in the District Court, Supreme Court or Court of Appeal.
Notice to the Attorney-General under the Human Rights Act should be served on Crown Law by email or post:
Post: The Attorney-General
c/o Crown Law
Level 11, State Law Building
50 Ann Street
BRISBANE QLD 4000
As legal advisors to government, Crown Law advises the Attorney-General of the notice, the issues, and relevant timeframes.
The Attorney-General then decides whether or not to intervene in the proceeding.
What factors does the Attorney-General consider when deciding whether or not to intervene in a proceeding?
Some of the factors the Attorney-General may consider include:
- the grounds for the notice
- whether the effect on human rights is significant
- the Government’s policy position in relation to the human rights question, for example where it involves a balancing of competing rights
- the significance of the human rights question arising, including any significant ramifications beyond the parties to the proceeding
- the extent to which the proceeding is likely to result in the development of human rights law in Queensland, including whether the proceeding involves a new or unsettled area of law, or provides an opportunity to clarify a disputed interpretation of the law
- the merits of the human rights arguments
- whether the human rights arguments are likely to arise, given other aspects of the proceeding
- the nature of the proceeding and the court or tribunal in which the proceeding is brought
- the stage of the proceeding at which the human rights question is raised, including whether it is raised at an interlocutory stage or at final hearing
- the public entity involved in the proceeding or to which the human rights question relates
- the other parties to the proceeding, including any State-related entity which is a party to the proceeding
- whether the Attorney-General proposes to present arguments that the other parties will not canvass
- whether the Attorney-General’s involvement will provide assistance to the court or tribunal hearing the proceeding (which the parties are not likely to provide)
- the positions of the parties (if known), in particular whether any party has requested the Attorney-General to intervene or opposes intervention
- whether the Queensland Human Rights Commission has intervened in the proceeding
- whether the intervention would add unnecessary or inappropriate cost or delay to the proceeding
- cost considerations
- any other aspect of the State interest in the proceeding, including other strategic considerations and the implications or potential implications for the State or Queenslanders of particular outcomes.
What is the Attorney-General’s policy regarding costs?
The Attorney-General will not ordinarily seek a costs order against a party in a proceeding in which the Attorney-General has intervened. However, a costs order might be sought in appropriate cases, for example where the party that raised the Human Rights Act issue abandons it at a late stage in proceeding.